Dissenting Opinion b.y
Hoffman, J.:Appellant contends that he was denied effective assistance of counsel because his trial counsel withdrew pre-trial motions to suppress identification evidence and a statement allegedly made by appellant.
This case arose as the result of a robbery of Fran-cesco’s Pizzeria in Philadelphia at approximately 11:30 p.m., on April 17, 1972. An armed intruder entered the store and ordered Joseph Giangreco, the proprietor, to open the cash register and give him money. James Waltz, a customer, and Gary Goldner and Michael Granata, both ' employees, also observed the robbery. A third employee, who was working in a back room, did not see the intruder.
On May 25, 1972, Giangreco and Waltz both attended a police lineup. The appellant, who had been arrested on another charge, was included in the lineup as a filler. Neither identified the appellant as the intruder. Waltz did not select anyone; Giangreco identified a person other than the appellant, one Joseph Smith. On May 24, 1972, Detective Rosenstein had obtained information from one Rickey Miller implicating appellant as the intruder. Detective Rosenstein then had an arrest warrant issued for appellant, who was still in custody on the other charges. On June 2, 1972, after being advised of his Miranda rights, appellant allegedly made a statement admitting participation in the robbery. This statement was typed by the detective, but appellant refused to sign it. On June *99IS, 1972, at a confrontation at a preliminary hearing, Giangreco identified appellant as the robber. Waltz also observed the appellant in custody at that hearing. Appellant alleges that this confrontation, coming after the witnesses’ failure to identify at a regular lineup, was excessively suggestive.
On August 29, 1972, appellant’s original Defender Association attorney filed a motion to suppress the identification testimony of Giangreco and Waltz.1 A motion was also filed to suppress appellant’s alleged confession. On October 17, 1972, a second defender withdrew the suppression motions. A third defender represented appellant at trial. On January 16, 1973, the first day of appellant’s trial, after five jurors had already been selected, she attempted to reinstate the suppression motions. A second attempt at reinstatement was made on the second day of trial. These motions were denied. On January 19, 1973, appellant was found guilty by the jury of burglary and aggravated robbery. Post-trial motions were denied, and appellant was sentenced to five to fifteen years’ imprisonment. This appeal followed.
Appellant alleges that he was denied effective assistance of counsel by the fact that the second defender who represented him during pretrial motions failed to pursue the motions to suppress the statement and the eyewitness identifications.2 The Commonwealth contends that the ap*100pellant has waived this claim of ineffective assistance of counsel by failing to raise the issue in the lower court. I cannot accept this contention. If trial counsel, as alleged, lacked the competence to pursue timely motions to suppress evidence, we cannot expect the same counsel3 to make a contemporaneous objection of record to his own incompetence.
Nor does the memorandum written by the second defender and presented to our Court necessarily indicate a reasonable trial strategy. In that memorandum, dated October 17, 1972, the same date on which trial counsel withdrew appellant’s suppression motions, the second defender concluded that “ [t] here were no motions to suppress argued as both the I.D. + the stmt, are jury questions.” Rather than indicating a conscious choice of trial tactics, see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A. 2d 349 (1967), this memoran*101dum, taken by itself, might indicate that trial counsel was unaware of or indifferent to the possibility of filing a motion to suppress before the court, and if that motion proved unsuccessful, later attempting to impeach the same evidence before the jury. “If, however, counsel’s failure to [pursue an alternative trial tactic] was the result of sloth or lack of awareness of the available alternatives, then his assistance was ineffective.” Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A. 2d 440, 443 (1975).
As it cannot be determined from this memorandum and the record before us whether or not the actions of the trial counsel complained of were ineffective, we should remand to the lower court for an evidentiary hearing on the effectiveness of trial counsel. “If upon remand, the court decides that counsel’s determination did not meet this standard, [a reasonable basis designed to effectuate his client’s interests,] a new trial shall be awarded.” Commonwealth v. Twiggs, supra, at 111, 331 A. 2d at 443.4 See also, Commonwealth v. Strachan, 460 Pa. 407, 333 A. 2d 790 (1975).
I would reverse and remand with a procedendo.5
Cercone and Spaeth, JJ., join in this dissenting opinion.
. Appellant has been represented throughout trial and appeal by the Defender Association. Appellant has been advised of his right to secure independent counsel, but has chosen not to do so.
. Appellant also contends that this case falls within one of the two exceptions to Rule 323 (b), Pa.R.Crim.P., which requires that such a motion to suppress ordinarily be made “not later than ten days before the beginning of the trial session in which the case is listed for trial, except that in any judicial district having continuous trial sessions said application shall be filed not later than ten days before the day the case is listed for trial.” Appellant first contends that “the opportunity [to file such motions] did not pre*100viously exist . . .” Although the case may have been handed from one defender to another, the Defender Association, taken as a whole, certainly had the opportunity to file timely motions. Appellant next argues that in this case “the interests of justice” required that belated motions to suppress be maintained. The lower court assumed that the motions had been withdrawn as the result of a decision of trial strategy by competent counsel for appellant. If this assumption was correct, the lower court did not err in denying a belated motion to suppress. If that assumption was incorrect, the issue will be dealt with on remand under the rubric of incompetence of counsel.
. Commonwealth v. Dancer, 460 Pa. 95, 331 A. 2d 435 (1975), indicates that ineffectiveness of counsel is not waived, even when it is not raised on direct appeal, where the appellant is represented on appeal by the same counsel who represented him at trial. A fortiori, appellant cannot be said to have waived this claim by failure to raise it at trial. The record indicates that appellant has been represented throughout trial and appeal by the same institutional attorney, the Defender Association of Philadelphia. The appearance card in the court below, and appellant’s brief in this Court, both bear the names of that organization and its then chief Defender.
. Twiggs, like the instant case, was a direct appeal from a judgment of sentence. In remanding for a hearing on effectiveness, it would not have to he decided whether the suppression motions, if promptly filed, would have been meritorious.
. Appellant also contends that the lower court erred in refusing to grant a point for charge concerning the Commonwealth’s failure to call Michael Granata, a fourth eyewitness to the events in the pizzeria. This issue need not he decided at this point. “Following the hearing court’s decision, the parties may appeal its order if they so desire. On that appeal, they may also raise any issues presented and undecided in the instant appeal.” Commonwealth v. Twiggs, 460 Pa. at 111, 331 A.2d at 443.